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Legal Report September 2012


WEAPONS. An employee of the University of Kentucky was wrongfully fired for keeping a firearm in his car on school property, according to the state’s high court. The court ruled that Kentucky’s concealed carry law prohibited the university from firing the employee.

In 2009, Michael Mitchell worked as an anesthesia technician at the University of Kentucky Chandler Medical Center while he attended graduate school at the university. Mitchell had a license to carry a concealed weapon under Kentucky law. In April 2009, Mitchell’s coworkers heard a rumor that Mitchell had a fire arm in his locker at work. The employees reported this rumor to the hospital administration.

The hospital called the University of Kentucky Police Department. When questioned by the police, Mitchell denied having the firearm in his locker. The police searched Mitchell’s locker but found no weapons. Mitchell then told the police that he kept a firearm in his car, which was parked on university property.

The police escorted Mitchell to his car. Mitchell showed the police the semiautomatic pistol he stored in his glove compartment. Police confiscated the gun, and Mitchell was suspended pending an investigation. A week later, Mitchell was fired for violating the university’s policy prohibiting possession of a deadly weapon on university property.

Mitchell filed a lawsuit against the university, claiming that he was terminated in violation of public policy—the only legal argument against termination in an at-will employment arrangement. Mitchell cited that his right to bear arms was protected by Kentucky law. The school requested summary judgment—a hearing based on the facts of a case, without at trial. The Fayette Circuit Court granted the summary judgment. Mitchell appealed the decision.

The Supreme Court of Kentucky overturned the summary judgment, finding in favor of Mitchell and remanding the case for consideration of civil penalties. The court ruled that, under state law, Mitchell had the right to store his firearm in the glove compartment of his car because he had a valid concealed carry permit. The court ruled that the concealed carry law superseded another Kentucky law providing that colleges and universities could “control the possession of deadly weapons on any property owned or controlled by them.” (Mitchell v. University of Kentucky, Supreme Court of Kentucky, No. 2010-SC- 000762-TG, 2012)

TERRORISM. The U.S. Supreme Court has refused to consider seven different appeals by prisoners at Guantanamo Bay, affirming the government’s detention of would-be terrorists.

In one prominent Guantanamo Bay case that the Court refused to hear, Adnan Farhan Abdul Latif challenged his detention, arguing that he had an innocent reason for being in Afghanistan when he was arrested there by U.S. forces. Latif argued that the government’s evidence in the case was flawed, and thus, its intelligence report on Latif was incorrect. The district court agreed with the plaintiff and refused to accept the government’s intelligence report.

In a heavily redacted opinion, a federal appeals court found that the lower court’s approach was incorrect and that the acceptance of a report into evidence still allows the plaintiff to challenge the facts in that report. By accepting the report, the appeals court noted, the burden of proof correctly shifts to the plaintiff to prove that the facts are incorrect.

In their appeal to the U.S. Supreme Court, attorneys for Latif argued that the appeals court’s decision gave the U.S. government too much power and provided an unfair advantage in every case. By allowing the case to stand, the Court has affirmed the appeals court decision that government intelligence reports should be assumed to be correct unless proven otherwise by the plaintiff. (Latif v. Obama, U.S. Court of Appeals for the District of Columbia, No. 10-5319, 2011)

HIPAA. A U.S. appeals court has ruled that an employee does not need to be aware of healthcare privacy laws to be guilty of violating them. In the case, a research assistant, Huping Zhou, at the University of California at Los Angeles Health System (UHS) was fired for “continued serious job deficiencies and poor judgment.”

After he was fired, Zhou accessed patient records without authorization. He viewed the personal healthcare records of coworkers and of celebrities who had been treated at UHS. Zhou was charged with a misdemeanor under the Health Insurance Portability and Accountability Act (HIPAA). The charge stated that Zhou obtained identifiable health information relating to an individual.

Zhou moved to dismiss the charge, arguing that he didn’t know that obtaining the information was illegal. The U.S. District Court for the Central District of California ruled that it was unnecessary to prove that Zhou knew that his actions were illegal. The court noted that the law defines the crime as obtaining individually identifiable health information and obtaining this information for a purpose other than permitted under law. Zhou appealed the decision.

The U.S. Court of Appeals for the Ninth Circuit upheld the lower court’s ruling and Zhou’s misdemeanor charge. The appeals court ruled that Zhou’s knowledge of the law was irrelevant. Violations of HIPAA, ruled the court, are “not limited to defendants who knew that their actions were illegal.” To violate the law, Zhou only needed to know that he obtained the identifiable health information of other people. (U.S. v. Zhou, U.S. Court of Appeals for the Ninth Circuit, No. 10-50231, 2012)


BORDER SECURITY. A bill (H.R. 915) that is designed to improve security along the U.S. border with Mexico has been approved by the Senate Homeland Security and Governmental Affairs Committee. It must now go before the full Senate for a vote.

The bill would require that U.S. Immigration and Customs Enforcement (ICE) establish a border enforcement security task force that would facilitate collaboration among federal, state, local, tribal, and foreign law enforcement agencies. These groups would share information and launch coordinated crime reduction activities.

ICE would be required to report to Congress on the effectiveness of the program in enhancing border security and reducing drug trafficking, arms smuggling, illegal-alien trafficking, violence, and kidnapping along the border.

COUNTERFEIT DRUGS. A bill (H.R. 4223) that would enhance penalties for drug counterfeiting has been approved by the House Judiciary Committee. The bill must now be taken up by the full House of Representatives. (S. 1002, a companion bill, has been approved by the Senate Judiciary Committee.)

The bill would make it illegal to knowingly steal or embezzle a medical product or obtain it through fraud or deception. It would also be illegal to transport, handle, traffic, or store a stolen medical product. The bill defines a medical product as a drug, biological product, device, medical food, or infant formula that is being transported or stored prior to being available for purchase.

Those who violate the law would face up to three years in prison for medical products valued at less than $3,000 and up to 20 years for products valued at more than $3,000. Civil actions may be brought against violators for $1 million or three times the value of the product, depending on which is greater.

S. 1002 would allow prosecutors to pursue the theft of medical products under the Racketeer Influenced and Corrupt Organizations Act (RICO). However, H.R. 4223 does not include this provision.

TERRORISM. A bill (H.R. 2764) that would establish an information-sharing program on weapons of mass destruction (WMDs) has passed the House of Representatives and is currently pending in the Senate Homeland Security and Government Affairs Committee.

The measure would require that the Department of Homeland Security (DHS) disseminate information on WMDs among federal, state, local, and tribal stakeholders when appropriate. The bill would also require that the DHS take advice from these stakeholders on optimal methods of sharing this information.

CAMPUS SECURITY. A bill (H.R. 5844) introduced by Rep. Patrick Meehan (R-PA) would make clarifications to the Jean Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act.

The bill would require that schools provide students and employees with a list of the persons in each department, along with their titles, to whom campus security issues should be reported. The bill would also include criminal offenses involving minors in the annual security report.

In addition, H.R. 5844 would require that schools take steps to protect the personally identifiable information of victims during the reporting process. The bill would require that schools designate an individual to serve as a “campus security authority coordinator” and provide that individual with the appropriate training. The measure would also distinguish between intentional violation and negligence when imposing civil penalties on schools that violate the law.

H.R. 5844 has six cosponsors and has been referred to the House Education and the Workforce Committee.

SCHOOL SAFETY. A bill (H.R. 5690) introduced by Rep. Steve Israel (D-NY) would provide grants to public elementary and secondary schools to train nurses on biological and chemical events.

Under the bill, nurses would be trained to serve as first responders and crisis managers in the event that their school was hit by a biological or chemical attack or an outbreak of pandemic flu.

H.R. 5690 has four cosponsors and has been referred to the House Energy and Commerce Committee’s Subcommittee on Health.


SOCIAL MEDIA. A bill (H.B. 308) currently pending in the Delaware House of Representatives after being approved by the House Telecommunication, Internet, and Technology Committee would prohibit employers from requesting passwords to social media sites as a condition of employment.

In addition, the bill would prohibit employers from requiring employees to log on to a social media site in the employer’s presence or from accessing the site via an associate of the employee. The bill would make it illegal for employers to discharge, discipline, or otherwise penalize an employee for failing to disclose such information.

The bill was amended in committee to add language exempting employers in certain circumstances. For example, in cases where an employer has credible information that workplace violence may be imminent, the employer may question the subject employee about postings on social network sites. The amendments also clarify that employers are permitted to access an employee’s public social networking site profile.

New York
WORKPLACE BULLYING. A bill (S.B. 4289) that would provide workers with a civil course of action if they are subjected to an abusive work environment is under consideration in the New York Senate.

The bill would provide legal recourse for employees who are harmed psychologically, physically, or economically by “being deliberately subjected to abusive work environments.” In the bill, an abusive work environment is defined as conduct that a reasonable person would find hostile, offensive, and unrelated to the employer’s legitimate business interests. This conduct could include verbal abuse, such as derogatory remarks or insults; physical conduct that a reasonable person would find threatening, intimidating, or humiliating; or the gratuitous sabotage or undermining of an employee’s work performance. A single act would not constitute abusive conduct under the bill.

Under the measure, retaliation for reporting an abusive work environment could also be subject to legal action.

EMPLOYMENT DISCRIMINATION. A bill (A.B. 1964) that would specifically outlaw discrimination based on the wearing of religious clothing or hairstyles has been approved by the California Assembly and is now pending in the California Senate.

The bill would prohibit employers from discriminating against employees or applicants based on religious clothing or hairstyles. Religious garb is defined as any apparel, ornaments, hairstyles, or facial hair that is part of the observance of religious faith by the individual.

The bill notes that accommodation won’t be required if the employee refuses to work with the public or with other employees. The bill also notes that accommodation is not required if it would compromise the health or safety of other employees.

This column should not be construed as legal or legislative advice.